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SEC.
2. CYBERPIRACY PREVENTION.
(a) IN
GENERAL- Section 43 of the Trademark Act of 1946
(15 U.S.C. 1125) is amended by inserting at the
end the following:
`(d)(1)(A)
A person shall be liable in a civil action by
the owner of a mark, including a famous personal
name which is protected under this section, if,
without regard to the goods or services of the
parties, that person--
`(i)
has a bad faith intent to profit from that
mark, including a famous personal name which
is protected under this section; and
`(ii)
registers, traffics in, or uses a domain name
that--
`(I)
in the case of a mark that is distinctive at
the time of registration of the domain name,
is identical or confusingly similar to that
mark;
`(II)
in the case of a famous mark that is famous
at the time of registration of the domain
name, is dilutive of that mark; or
`(III)
is a trademark, word, or name protected by
reason of section 706 of title 18, United
States Code, or section 220506 of title 36,
United States Code.
`(B)
In determining whether there is a bad-faith
intent described under subparagraph (A), a court
may consider factors such as, but not limited
to--
`(i)
the trademark or other intellectual property
rights of the person, if any, in the domain
name;
`(ii)
the extent to which the domain name consists
of the legal name of the person or a name
that is otherwise commonly used to identify
that person;
`(iii)
the person's prior lawful use, if any, of the
domain name in connection with the bona fide
offering of any goods or services;
`(iv)
the person's lawful noncommercial or fair use
of the mark in a site accessible under the
domain name;
`(v)
the person's intent to divert consumers from
the mark owner's online location to a site
accessible under the domain name that could
harm the goodwill represented by the mark,
either for commercial gain or with the intent
to tarnish or disparage the mark, by creating
a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of
the site;
`(vi)
the person's offer to transfer, sell, or
otherwise assign the domain name to the mark
owner or any third party for financial gain
without having used, or having an intent to
use, the domain name in the bona fide
offering of any goods or services;
`(vii)
the person's provision of material and
misleading false contact information when
applying for the registration of the domain
name or the person's intentional failure to
maintain accurate contact
information;
`(viii)
the person's registration or acquisition of
multiple domain names which the person knows
are identical or confusingly similar to marks
of others that are distinctive at the time of
registration of such domain names, or
dilutive of famous marks of others that are
famous at the time of registration of such
domain names, without regard to the goods or
services of such persons;
`(ix)
the person's history of offering to transfer,
sell, or otherwise assign domain names
incorporating marks of others to the mark
owners or any third party for consideration
without having used, or having an intent to
use, the domain names in the bona fide
offering of any goods and
services;
`(x)
the person's history of providing material
and misleading false contact information when
applying for the registration of other domain
names which incorporate marks, or the
person's history of using aliases in the
registration of domain names which
incorporate marks of others; and
`(xi)
the extent to which the mark incorporated in
the person's domain name registration is
distinctive and famous within the meaning of
subsection (c)(1) of section 43 of the
Trademark Act of 1946 (15 U.S.C.
1125).
`(C)
In any civil action involving the registration,
trafficking, or use of a domain name under this
paragraph, a court may order the forfeiture or
cancellation of the domain name or the transfer
of the domain name to the owner of the
mark.
`(D) A
person shall be liable for using a domain name
under subparagraph (A)(ii) only if that person
is the domain name registrant or that
registrant's authorized licensee.
`(E)
As used in this paragraph, the term `traffics
in' refers to transactions that include, but are
not limited to, sales, purchases, loans,
pledges, licenses, exchanges of currency, and
any other transfer for consideration or receipt
in exchange for consideration.
`(2)(A)
In addition to any other jurisdiction that
otherwise exists, whether in rem or in personam,
the owner of a mark may file an in rem civil
action against a domain name in the judicial
district in which the domain name registrar,
domain name registry, or other domain name
authority that registered or assigned the domain
name is located, if--
`(i)
the domain name violates any right of the
owner of the mark; and
`(ii)
the owner--
`(I)
has sent a copy of the summons and complaint
to the registrant of the domain name at the
postal and e-mail address provided by the
registrant to the registrar; and
`(II)
has published notice of the action as the
court may direct promptly after filing the
action.
The
actions under clause (ii) shall constitute
service of process.
`(B)
In an in rem action under this paragraph, a
domain name shall be deemed to have its situs in
the judicial district in which--
`(i)
the domain name registrar, registry, or other
domain name authority that registered or
assigned the domain name is located;
or
`(ii)
documents sufficient to establish control and
authority regarding the disposition of the
registration and use of the domain name are
deposited with the court.
`(C)
The remedies of an in rem action under this
paragraph shall be limited to a court order for
the forfeiture or cancellation of the domain
name or the transfer of the domain name to the
owner of the mark. Upon receipt of written
notification of a filed, stamped copy of a
complaint filed by the owner of a mark in a
United States district court under this
paragraph, the domain name registrar, domain
name registry, or other domain name authority
shall--
`(i)
expeditiously deposit with the court
documents sufficient to establish the court's
control and authority regarding the
disposition of the registration and use of
the domain name to the court; and
`(ii)
not transfer or otherwise modify the domain
name during the pendency of the action,
except upon order of the court.
The
domain name registrar or registry or other
domain name authority shall not be liable for
injunctive or monetary relief under this
paragraph except in the case of bad faith or
reckless disregard, which includes a willful
failure to comply with any such court
order.
`(3)
The civil action established under paragraph (1)
and the in rem action established under
paragraph (2), and any remedy available under
either such action, shall be in addition to any
other civil action or remedy otherwise
applicable.'.
SEC.
3. DAMAGES AND REMEDIES.
(a)
REMEDIES IN CASES OF DOMAIN NAME PIRACY-
(1)
INJUNCTIONS- Section 34(a) of the Trademark
Act of 1946 (15 U.S.C. 1116(a)) is amended in
the first sentence by striking `(a) or (c)'
and inserting `(a), (c), or (d)'.
(2)
DAMAGES- Section 35(a) of the Trademark Act
of 1946 (15 U.S.C. 1117(a)) is amended in the
first sentence by inserting `, (c), or (d)'
after `section 43(a)'.
(b)
STATUTORY DAMAGES- Section 35 of the Trademark
Act of 1946 (15 U.S.C. 1117) is amended by
adding at the end the following:
`(d)
In a case involving a violation of section
43(d)(1), the plaintiff may elect, at any time
before final judgment is rendered by the trial
court, to recover, instead of actual damages and
profits, an award of statutory damages in the
amount of not less than $1,000 and not more than
$100,000 per domain name, as the court considers
just. The court may remit statutory damages in
any case in which the court finds that an
infringer believed and had reasonable grounds to
believe that use of the domain name by the
infringer was a fair or otherwise lawful
use.'
SEC.
4. LIMITATION ON LIABILITY.
Section
32(2) of the Trademark Act of 1946 (15 U.S.C.
1114) is amended--
(1) in
the matter preceding subparagraph (A) by
striking `under section 43(a)' and inserting
`under section 43(a) or (d)'; and
(2) by
redesignating subparagraph (D) as subparagraph
(E) and inserting after subparagraph (C) the
following:
`(D)(i)
A domain name registrar, a domain name registry,
or other domain name registration authority that
takes any action described under clause (ii)
affecting a domain name shall not be liable for
monetary or injunctive relief to any person for
such action, regardless of whether the domain
name is finally determined to infringe or dilute
the mark.
`(ii)
An action referred to under clause (i) is any
action of refusing to register, removing from
registration, transferring, temporarily
disabling, or permanently canceling a domain
name--
`(I)
in compliance with a court order under
section 43(d); or
`(II)
in the implementation of a reasonable policy
by such registrar, registry, or authority
prohibiting the registration of a domain name
that is identical to, confusingly similar to,
or dilutive of another's mark.
`(iii)
A domain name registrar, a domain name registry,
or other domain name registration authority
shall not be liable for damages under this
section for the registration or maintenance of a
domain name for another absent a showing of bad
faith intent to profit from such registration or
maintenance of the domain name.
(iv)
If a registrar, registry, or other registration
authority takes an action described under clause
(ii) based on a knowing and material
misrepresentation by any other person that a
domain name is identical to, confusingly similar
to, or dilutive of a mark, the person making the
knowing and material misrepresentation shall be
liable for any damages, including costs and
attorney's fees, incurred by the domain name
registrant as a result of such action. The court
may also grant injunctive relief to the domain
name registrant, including the reactivation of
the domain name or the transfer of the domain
name to the domain name registrant.'.
SEC.
5. DEFINITIONS.
Section
45 of the Trademark Act of 1946 (15 U.S.C. 1127)
is amended by inserting after the undesignated
paragraph defining the term `counterfeit' the
following:
`The
term `domain name' means any alphanumeric
designation which is registered with or assigned
by any domain name registrar, domain name
registry, or other domain name registration
authority as part of an electronic address on
the Internet.
`The
term `Internet' has the meaning given that term
in section 230(f)(1) of the Communications Act
of 1934 (47 U.S.C. 230(f)(1)).'.
SEC.
6. SAVINGS CLAUSE.
Nothing
in this Act shall affect any defense available
to a defendant under the Trademark Act of 1946
(including any defense under section 43(c)(4) of
such Act or relating to fair use) or a person's
right of free speech or expression under the
first amendment of the United States
Constitution.
SEC.
7. EFFECTIVE DATE.
Sections
2 through 6 of this Act shall apply to all
domain names registered before, on, or after the
date of the enactment of this Act, except that
damages under subsection (a) or (d) of section
35 of the Trademark Act of 1946 (15 U.S.C.
1117), as amended by section 3 of this Act,
shall not be available with respect to the
registration, trafficking, or use of a domain
name that occurs before the date of the
enactment of this Act.
SEC.
8. ADJUSTMENT OF CERTAIN TRADEMARK AND PATENT
FEES.
(a)
TRADEMARK FEES- Notwithstanding the second
sentence of section 31(a) of the Trademark Act
of 1946 (15 U.S.C. 1113(a)), the Commissioner of
Patents and Trademarks is authorized in fiscal
year 2000 to adjust trademark fees without
regard to fluctuations in the Consumer Price
Index during the preceding 12 months.
(b)
PATENT FEES-
(1)
ORIGINAL FILING FEE- Section 41(a)(1)(A) of
title 35, United States Code, relating to the
fee for filing an original patent
application, is amended by striking `$760'
and inserting `$690'.
(2)
REISSUE FEE- Section 41(a)(4)(A) of title 35,
United States Code, relating to the fee for
filing for a reissue of a patent, is amended
by striking `$760' and inserting
`$690'.
(3)
NATIONAL FEE FOR CERTAIN INTERNATIONAL
APPLICATIONS- Section 41(a)(10) of title 35,
United States Code, relating to the national
fee for certain international applications,
is amended by striking `$760' and inserting
`$690'.
(4)
MAINTENANCE FEES- Section 41(b)(1) of title
35, United States Code, relating to certain
maintenance fees, is amended by striking
`$940' and inserting `$830'.
(c)
EFFECTIVE DATE- Subsection (a) shall take effect
on the date of the enactment of this Act. The
amendments made by subsection (b) shall take
effect 30 days after the date of the enactment
of this Act.
SEC.
9. DOMAIN NAME FOR PRESIDENT, MEMBERS OF
CONGRESS, SNF POLITICAL OFFICE HOLDERS AND
CANDIDATES.
(a) IN
GENERAL- The Secretary of Commerce shall require
the registry administrator for the .us top level
domain to establish a 2nd level domain name for
the purpose of registering only domain names of
the President, Members of Congress, United
States Senators, and other current holders of,
and official candidates and potential official
candidates for, Federal, State, or local
political office in the United
States.
(b)
GUIDELINES- The Secretary of Commerce, in
consultation with the Federal Election
Commission, shall establish guidelines and
procedures under which individuals may register
a domain name in the 2nd level domain name
established pursuant to subsection
(a).
(c)
ELIGIBLE REGISTRANTS- The Federal Election
Commission shall establish and maintain a list
of individuals eligible, under the guidelines
established pursuant to subsection (b), to
register a domain name in the 2nd level domain
name established pursuant to subsection
(a).
(d)
FEES- The registry administrator and registrars
for the .us top level domain may charge
individuals reasonable fees for registering
domain names pursuant to subsection
(a).
(e)
DEFINITION- As used in this section, the term
`Member of Congress' means a Representative in,
or a delegate or Resident Commissioner to, the
Congress.
(f)
EFFECTIVE DATE- Registration of domain names in
accordance with this section shall begin no
later than December 31, 2000.
SEC.
10. HISTORIC PRESERVATION.
Section
101(a)(1)(A) of the National Historic
Preservation Act (16 U.S.C. 470a(a)(1)(A)) is
amended by adding at the end the following:
`Notwithstanding section 43(c) of the Act
commonly known as the Trademark Act of 1946' (15
U.S.C. 1125(c)), buildings and structures
meeting the criteria for the National Register
of Historic Places under paragraph (2) may
retain the name by which they are listed on the
Register, if that name is the historical name
associated with the building or
structure.'.
Amend
the title so as to read: `An Act to amend
certain trademark laws to prevent the
misappropriation of marks.'.
Attest:
Clerk.
END
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SEC.
2. FINDINGS.
Congress
finds the following:
(1)
The registration, trafficking in, or use of a
domain name that is identical or confusingly
similar to a trademark or service mark of
another that is distinctive at the time of the
registration of the domain name, or dilutive of
a famous trademark or service mark of another
that is famous at the time of the registration
of the domain name, without regard to the goods
or services of the parties, with the bad-faith
intent to profit from the goodwill of another's
mark (commonly referred to as `cyberpiracy' and
`cybersquatting')--
(A)
results in consumer fraud and public
confusion as to the true source or
sponsorship of goods and services;
(B)
impairs electronic commerce, which is
important to interstate commerce and the
United States economy;
(C)
deprives legitimate trademark owners of
substantial revenues and consumer goodwill;
and
(D)
places unreasonable, intolerable, and
overwhelming burdens on trademark owners in
protecting their valuable
trademarks.
(2)
Amendments to the Trademark Act of 1946 would
clarify the rights of a trademark owner to
provide for adequate remedies and to deter
cyberpiracy and cybersquatting.
SEC.
3. CYBERPIRACY PREVENTION.
(a) IN
GENERAL- Section 43 of the Trademark Act of 1946
(15 U.S.C. 1125) is amended by inserting at the
end the following:
`(d)(1)(A)
A person shall be liable in a civil action by
the owner of a trademark or service mark if,
without regard to the goods or services of the
parties, that person--
`(i)
has a bad faith intent to profit from that
trademark or service mark; and
`(ii)
registers, traffics in, or uses a domain name
that--
`(I)
in the case of a trademark or service mark
that is distinctive at the time of
registration of the domain name, is identical
or confusingly similar to such mark;
or
`(II)
in the case of a famous trademark or service
mark that is famous at the time of
registration of the domain name, is dilutive
of such mark.
`(B)
In determining whether there is a bad-faith
intent described under subparagraph (A), a court
may consider factors such as, but not limited
to--
`(i)
the trademark or other intellectual property
rights of the person, if any, in the domain
name;
`(ii)
the extent to which the domain name consists
of the legal name of the person or a name
that is otherwise commonly used to identify
that person;
`(iii)
the person's prior use, if any, of the domain
name in connection with the bona fide
offering of any goods or services;
`(iv)
the person's legitimate noncommercial or fair
use of the mark in a site accessible under
the domain name;
`(v)
the person's intent to divert consumers from
the mark owner's online location to a site
accessible under the domain name that could
harm the goodwill represented by the mark,
either for commercial gain or with the intent
to tarnish or disparage the mark, by creating
a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of
the site;
`(vi)
the person's offer to transfer, sell, or
otherwise assign the domain name to the mark
owner or any third party for substantial
consideration without having used, or having
an intent to use, the domain name in the bona
fide offering of any goods or
services;
`(vii)
the person's intentional provision of
material and misleading false contact
information when applying for the
registration of the domain name;
and
`(viii)
the person's registration or acquisition of
multiple domain names which are identical or
confusingly similar to trademarks or service
marks of others that are distinctive at the
time of registration of such domain names, or
dilutive of famous trademarks or service
marks of others that are famous at the time
of registration of such domain names, without
regard to the goods or services of such
persons.
`(C)
In any civil action involving the registration,
trafficking, or use of a domain name under this
paragraph, a court may order the forfeiture or
cancellation of the domain name or the transfer
of the domain name to the owner of the
mark.
`(D) A
use of a domain name described under
subparagraph (A) shall be limited to a use of
the domain name by the domain name registrant or
the domain name registrant's authorized
licensee.
`(2)(A)
The owner of a mark may file an in rem civil
action against a domain name if--
`(i)
the domain name violates any right of the
registrant of a mark registered in the Patent
and Trademark Office, or section 43 (a) or
(c); and
`(ii)
the court finds that the owner has
demonstrated due diligence and was not able
to find a person who would have been a
defendant in a civil action under paragraph
(1).
`(B)
The remedies of an in rem action under this
paragraph shall be limited to a court order for
the forfeiture or cancellation of the domain
name or the transfer of the domain name to the
owner of the mark.'.
(b)
ADDITIONAL CIVIL ACTION AND REMEDY- The civil
action established under section 43(d)(1) of the
Trademark Act of 1946 (as added by this section)
and any remedy available under such action shall
be in addition to any other civil action or
remedy otherwise applicable.
SEC.
4. DAMAGES AND REMEDIES.
(a)
REMEDIES IN CASES OF DOMAIN NAME
PIRACY-
(1)
INJUNCTIONS- Section 34(a) of the Trademark
Act of 1946 (15 U.S.C. 1116(a)) is amended in
the first sentence by striking `section
43(a)' and inserting `section 43 (a), (c), or
(d)'.
(2)
DAMAGES- Section 35(a) of the Trademark Act
of 1946 (15 U.S.C. 1117(a)) is amended in the
first sentence by inserting `, (c), or (d)'
after `section 43 (a)'.
(b)
STATUTORY DAMAGES- Section 35 of the Trademark
Act of 1946 (15 U.S.C. 1117) is amended by
adding at the end the following:
`(d)
In a case involving a violation of section
43(d)(1), the plaintiff may elect, at any time
before final judgment is rendered by the trial
court, to recover, instead of actual damages and
profits, an award of statutory damages in the
amount of not less than $1,000 and not more than
$100,000 per domain name, as the court considers
just. The court shall remit statutory damages in
any case in which an infringer believed and had
reasonable grounds to believe that use of the
domain name by the infringer was a fair or
otherwise lawful use.'.
SEC.
5. LIMITATION ON LIABILITY.
Section
32(2) of the Trademark Act of 1946 (15 U.S.C.
1114) is amended--
(1) in
the matter preceding subparagraph (A) by
striking `under section 43(a)' and inserting
`under section 43 (a) or (d)'; and
(2) by
redesignating subparagraph (D) as subparagraph
(E) and inserting after subparagraph (C) the
following:
`(D)(i)
A domain name registrar, a domain name
registry, or other domain name registration
authority that takes any action described
under clause (ii) affecting a domain name
shall not be liable for monetary relief to
any person for such action, regardless of
whether the domain name is finally determined
to infringe or dilute the mark.
`(ii)
An action referred to under clause (i) is any
action of refusing to register, removing from
registration, transferring, temporarily
disabling, or permanently canceling a domain
name--
`(I)
in compliance with a court order under
section 43(d); or
`(II)
in the implementation of a reasonable policy
by such registrar, registry, or authority
prohibiting the registration of a domain name
that is identical to, confusingly similar to,
or dilutive of another's mark registered on
the Principal Register of the United States
Patent and Trademark Office.
`(iii)
A domain name registrar, a domain name
registry, or other domain name registration
authority shall not be liable for damages
under this section for the registration or
maintenance of a domain name for another
absent a showing of bad faith intent to
profit from such registration or maintenance
of the domain name.
`(iv)
If a registrar, registry, or other
registration authority takes an action
described under clause (ii) based on a
knowing and material misrepresentation by any
person that a domain name is identical to,
confusingly similar to, or dilutive of a mark
registered on the Principal Register of the
United States Patent and Trademark Office,
such person shall be liable for any damages,
including costs and attorney's fees, incurred
by the domain name registrant as a result of
such action. The court may also grant
injunctive relief to the domain name
registrant, including the reactivation of the
domain name or the transfer of the domain
name to the domain name
registrant.
`(v)
A domain name registrant whose domain name
has been suspended, disabled, or transferred
under a policy described under clause
(ii)(II) may, upon notice to the mark owner,
file a civil action to establish that the
registration or use of the domain name by
such registrant is not unlawful under this
Act. The court may grant injunctive relief to
the domain name registrant, including the
reactivation of the domain name or transfer
of the domain name to the domain name
registrant.
SEC.
6. DEFINITIONS.
Section
45 of the Trademark Act of 1946 (15 U.S.C. 1127)
is amended by inserting after the undesignated
paragraph defining the term `counterfeit' the
following:
`The
term `Internet' has the meaning given that term
in section 230(f)(1) of the Communications Act
of 1934 (47 U.S.C. 230(f)(1)).
`The
term `domain name' means any alphanumeric
designation which is registered with or assigned
by any domain name registrar, domain name
registry, or other domain name registration
authority as part of an electronic address on
the Internet.'.
SEC.
7. SAVINGS CLAUSE.
Nothing
in this Act shall affect any defense available
to a defendant under the Trademark Act of 1946
(including any defense under section 43(c)(4) of
such Act or relating to fair use) or a person's
right of free speech or expression under the
first amendment of the United States
Constitution.
SEC.
8. SEVERABILITY.
If any
provision of this Act, an amendment made by this
Act, or the application of such provision or\
amendment to any person or circumstances is held
to be unconstitutional, the remainder of this
Act, the amendments made by this Act, and the
application of the provisions of such to any
person or circumstance shall not be affected
thereby.
SEC.
9. EFFECTIVE DATE.
This
Act shall apply to all domain names registered
before, on, or after the date of enactment of
this Act, except that statutory damages under
section 35(d) of the Trademark Act of 1946 (15
U.S.C. 1117), as added by section 4 of this Act,
shall not be available with respect to the
registration, trafficking, or use of a domain
name that occurs before the date of enactment of
this Act.
Passed
the Senate August 5, 1999.
Attest:
Secretary.
106th
CONGRESS
1st
Session
S.
1255
AN
ACT
To
protect consumers and promote electronic
commerce by amending certain trademark
infringement, dilution, and counterfeiting laws,
and for other purposes.
END
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2.
YOUR REPRESENTATIONS. By applying to
register a domain name, or by asking us to
maintain or renew a domain name registration,
you hereby represent and warrant to us that (a)
the statements that you made in your
Registration Agreement are complete and
accurate; (b) to your knowledge, the
registration of the domain name will not
infringe upon or otherwise violate the rights of
any third party; (c) you are not registering the
domain name for an unlawful purpose; and (d) you
will not knowingly use the domain name in
violation of any applicable laws or regulations.
We do not check to verify, and
It
is your responsibility to
determine, whether your domain
name registration infringes or violates someone
else's rights.
3.
CANCELLATIONS, TRANSFERS AND CHANGES. We
will cancel, transfer or otherwise make changes
to domain name registrations under the following
circumstances:
a.
subject to the provisions of Paragraph 8, our
receipt of written or appropriate electronic
instructions from you or your authorized
agent to take such action;
b.
our receipt of an order from a court or
arbitral tribunal, in each case of competent
jurisdiction, requiring such
action; and/or
c.
our receipt of a decision of an
Administrative Panel requiring such action in
any administrative proceeding to which you
were a party and
which was conducted under this Policy or a
later version of this Policy adopted by
ICANN. (See Paragraphh 4(i) and (k) below).
(as explained in Paragraph 4 below);
and/or
d.
to comply with the resolution of a dispute
concerning your domain name under another
registrar's domain name dispute resolution
policy that is identical to this policy in
all material respects.
We may
also cancel, transfer or otherwise make changes
to a domain name registration in accordance with
the terms of your Registration Agreement or
other legal requirements.
4.
MANDATORY ADMINISTRATIVE PROCEEDING.
This
Paragraph sets forth the type of disputes for
which you are required to submit to a mandatory
administrative proceeding. These proceedings
will be conducted before one of the
administrative-dispute-resolution service
providers listed at <URL>
www.icann.org/udrp/approved-providers.htm
(each, a "Provider").
a.
Applicable Disputes. You are required to
submit to a mandatory administrative proceeding
in the event that a third party (a
"complainant") asserts to the applicable
Provider, in compliance with the Rules of
Procedure, that
(i)
your domain name is identical or confusingly
similar to a trademark or service mark in
which the complainant has rights; and
(ii)
you have no rights or legitimate interests in
respect of the domain name; and
(iii)
your domain name has been registered and is
being used in bad faith.
In the
administrative proceeding, the complainant must
prove that each of these three elements are
present.
b.
Evidence of Registration and Use in Bad
Faith. For the purposes of Paragraph
4(a)(iii), the following circumstances, in
particular but without limitation, if found by
the Panel to be present, shall be evidence of
the registration and use of a domain name in bad
faith:
(i)
circumstances indicating that you have
registered or you have acquired the domain
name primarily for the purpose of selling,
renting, or otherwise transferring the domain
name registration to the complainant who is
the owner of the trademark or service mark or
to a competitor of that complainant, for
valuable consideration in excess of your
documented out-of-pocket costs directly
related to the domain name; or
(ii)
you have registered the domain name in order
to prevent the owner of the trademark or
service mark from reflecting the mark in a
corresponding domain name, provided
that
you have engaged
in
a pattern of such conduct has been
established on your part;
or
(iii)
you have registered the domain name primarily
for the purpose of disrupting the business of
a competitor; or
(iv)
by using the domain name, you have
intentionally attempted to attract, for
commercial gain, Internet users to your web
site or other on-line location, by creating a
likelihood of confusion with the
complainant's
mark as to the source, sponsorship,
affiliation, or endorsement of your web site
or location or of a product or service on
your web site or location.
c.
How to Demonstrate Your Rights to and
Legitimate Interests in the Domain Name in
Responding to a Complaint. When you receive
a complaint, you should refer to Paragraph 5 of
the Rules of Procedure in determining how your
response should be prepared. Any of the
following circumstances, in particular but
without limitation, if found by the Panel to be
proved based on its evaluation of all evidence
presented, shall demonstrate your rights or
legitimate interests to the domain name for
purposes of Paragraph 4(a)(ii):
(i)
before any notice to you of the dispute, your
use of, or demonstrable preparations to use,
the domain name or a name corresponding to
the domain name in connection with a bona
fide offering of goods or services; or
(ii)
you (as an individual, business, or other
organization) have been commonly known by the
domain name, even if you have acquired no
trademark or service mark rights at
issue; or
(iii)
you are making a legitimate noncommercial or
fair use of the domain name, without intent
for commercial gain to misleadingly divert
consumers or to tarnish the trademark or
service mark at
issue.
d.
Selection of Provider. The
complainant
shall select
the
Provider will be selected by
[comments
solicited].
from among those provided by ICANN by submitting
the complaint to that Provider.
The
selected That
Provider will administer the
proceeding, except in cases of consolidation as
described in Paragraph 4(f).
e.
Initiation of Proceeding and Process and
Selection of Administrative Panel. The Rules
of Procedure state the process for initiating
and conducting a proceeding and for selecting
the panel that will decide the dispute (the
"Administrative Panel").
f.
Consolidation. In the event of multiple
disputes between you and a complainant, either
you or the complainant may petition to
consolidate the disputes before a single
Administrative Panel. This petition shall be
made to the first Administrative Panel
selected
appointed
to hear a pending dispute between the parties.
This Administrative Panel may consolidate before
it any
or all
such disputes in its sole discretion, provided
that the
disputes being consolidated are governed by this
Policy or a later version of this Policy adopted
by ICANN.
(i) such domain name registrations are
governed by a domain name dispute resolution
policy identical to this Policy in all material
respects; and (ii) all of the disputes are
before Providers listed at
<URL>.
g.
Fees. All fees charged by a Provider in
connection with any dispute before an
Administrative Panel pursuant to this Policy
shall be paid by the complanant, except in cases
where you elect to expand the number of
panelists on an Administrative Panel
from
one to three
panelists
as provided in Paragraph 19
5(b)(iv)
of the Rules of Procedure, in which case all
fees will be split evenly by you and the
complainant.
h.
Our Involvement in Administrative
Proceedings. We do not, and will not,
participate in the administration or conduct of
any proceeding before an Administrative Panel.
In addition, we will not be liable as a result
of any decisions rendered by the Administrative
Panel.
i.
Remedies. The remedies available to a
complainant pursuant to any proceeding before an
Administrative Panel shall be limited to
requiring the cancellation of your domain name
or the transfer of your domain name registration
to the complainant.
j.
Notification and Publication. The
Provider shall notify us of any decision made by
an Administrative Panel with respect to a domain
name you have registered with us. All decisions
under this Policy will be published in full over
the Internet, except when an Administrative
Panel determines in an exceptional case to
redact portions of its decision.
k.
Availability of Court Proceedings. The
mandatory administrative proceeding requirements
set forth in Paragraph 4 shall not prevent
either you or the complainant from submitting
the dispute to a court of competent jurisdiction
for independent resolution before such mandatory
administrative proceeding is commenced or after
such proceeding is concluded. If an
Administrative Panel decides that your domain
name registration should be canceled or
transferred, we will wait ten (10) business days
(as observed in the location of our principal
office) after we are informed by the applicable
Provider of the Administrative Panel's decision
before implementing that decision. We will then
implement the decision unless we have received
from you during that ten (10) business day
period official documentation (such as a copy of
a complaint, file-stamped by the clerk of the
court) that you have commenced a lawsuit against
the complainant in a Mutual
Jurisdiction to
which the complainant has submitted under
Paragraph 3(b)(xiii) of the Rules of Procedure.
(In general, that jurisdiction is either the
location of our principal office or of your
address as shown in our Whois database. See
Paragraphs 1 and 3(b)(xiii) of the Rules of
Procedure for
details.)
regarding your right to use your domain
name. For purposes of this Policy, a Mutual
Jurisdiction is one defined as such in the Rules
of Procedure (and in which both parties are
subject to court jurisdiction). If we
receive such documentation within the ten (10)
business day period, we will not implement the
Administrative Panel's decision, and we will
take no further action, until we receive (i)
evidence satisfactory to us of a resolution
between the
parties;(ii)
evidence satisfactory to us
that your lawsuit has been dismissed or
withdrawn; or (iii) a copy of an order from such
court dismissing your lawsuit or ordering that
you do not have the right to continue to use
your domain name.
5.
All Other Disputes and Litigation. All
other disputes between you and any party other
than us regarding your domain name registration
that are not brought pursuant to the mandatory
administrative proceeding provisions of
Paragraph 4 shall be resolved between you and
such other party through any court, arbitration
or other proceeding that may be
available.
6.
Our Involvement in Disputes. We will not
participate in any way in any dispute between
you and any party other than us regarding the
registration and use of your domain name. You
shall not name us as a party or otherwise
include us in any such proceeding. In the event
that we are named as a party in any such
proceeding, we reserve the right to raise any
and all defenses deemed appropriate, and to take
any other action necessary to defend
ourselves.
7.
Maintaining the Status Quo. We will not
cancel, transfer, activate, deactivate, or
otherwise change the status of any domain name
registration under this Policy except as
provided in Paragraph 3 above.
8.
Transfers During a Dispute.
a.
Transfers of a Domain Name to a New Holder. You
may not transfer your domain name registration
to another holder (i) during a pending
administrative proceeding brought pursuant to
Paragraph 4 or for a period of fifteen (15)
business days (as observed in the location of
our principal place of business) after such
proceeding is concluded; or (ii) during a
pending court proceeding or arbitration
commenced regarding your domain name unless the
party to whom the domain name registration is
being transferred agrees, in writing, to be
bound by the decision of the court or
arbitrator. We reserve the right to cancel any
transfer of a domain name registration to
another holder that is made in violation of this
subparagraph.
b.
Changing Registrars. You may not transfer your
domain name registration to another registrar
during a pending administrative proceeding
brought pursuant to Paragraph 4 or for a period
of fifteen (15) calendar days (as observed in
the location of our principal place of business)
after such proceeding is concluded. You may
transfer administration of your domain name
registration to another registrar during a
pending court action or arbitration, provided
that the domain name you have registered with us
shall continue to be subject to the proceedings
commenced against you in accordance with the
terms of this Policy. In the event that you
transfer a domain name registration to us during
the pendency of a court action or arbitration,
such dispute shall remain subject to the domain
name dispute policy of the registrar from which
the domain name registration was
transferred.
9.
Policy Modifications. We reserve the
right to modify this Policy at any
time
with the permission of
ICANN.
We will post our revised Policy at <URL>
at least thirty (30) calendar days before it
becomes effective. Unless this Policy has
already been invoked
by
the submission of a complaint to a
Provider,
in which event the version of the Policy in
effect at the time it was invoked will apply to
you until the dispute is over, all such changes
will be binding upon you with respect to any
domain name registration dispute, whether the
dispute arose before, on or after the effective
date of our change. In the event that you object
to a change in this Policy, your sole remedy is
to cancel your domain name registration
with
us,
or transfer your domain name
registration to another registrar,
provided that in the event of a
transfer, you will not be entitled to a
refund of any fees you paid to us. The revised
Policy will apply to you until you cancel or
transfer your domain name registration.
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